Monday, June 15, 2015

Smells Like Racism: NLRB Finds Racist Comments On The Picket Line OK

Apparently supervisor-bashing is not the only kind of speech that receives protection.  A recent NLRB decision held that a worker’s racist comments were not grounds for termination. Cooper Tire & Rubber Co. & United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Int'l Union, Afl-Cio/clc

Anthony Runion was a unionized employee who worked for Cooper Tire & Rubber Co, a corporation that manufactures tires.  Runion worked at Cooper’s Findlay, Ohio plant.  Cooper’s Findlay plant employees were locked out after attempts to negotiate a new collective-bargaining agreement were unsuccessful. As a result, the Findlay employees, including Runion, began to picket.  During the lockout, Cooper staffed their Findlay plant with replacement workers from their other facilities, as well as temporary, contracted replacement workers.  Most of these replacement workers were African-Americans.  On January 7, 2012, replacement workers were bused in to the Findlay plant, past the picketers.  Reunion yelled the following statements at the van:

“Hey, did you bring enough KFC for everyone?” and “Hey, anybody smell that?  I smell fried chicken and watermelon. ”
As many would expect, Cooper subsequently discharged Runion for his racially charged statements.  Though an arbitrator found that Runion was discharged for cause, the NLRB ruled that Runion’s dismissal constituted a violation of protected activity on the picket line.  Though the NLRB found Runion’s comments to be “racist, offensive, and reprehensible,” they also found that his statements “were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property.”  The standard for when an employer can refuse to reinstate an employee on strike is when that employee’s misconduct “reasonably tend[s] to coerce or intimidate employees in their rights protected under the Act or whether [the misconduct] raise[s] a reasonable likelihood of an imminent physical confrontation.”
The NLRB found persuasive also that Runion’s statements were made between 6-27 seconds after the replacement workers’ van had passed him, and they were directed to the picketers across from him, not the replacement workers themselves.  Therefore, the NLRB found that Runion’s statements were not violent in nature and did not meet the standard for just termination under the Act. The NLRB ordered that Cooper offer to reinstate Runion and give him backpay, along with compensating him for any adverse tax consequences.  

Employers should take note that the NLRB seemingly will go out of its way to protect workers on the picket line as long as their behavior is not threatening or violent in nature. Of course one could argue that racist comments such as this worker’s are designed to incite violent behavior, but the NLRB just doesn’t agree. 

While NLRB rulings are immediately applicable to private sector employment relationships, as we always do, we caution public sector employers to take heed of these decisions. The public sector equivalents of the NLRB in Illinois, the Illinois Public Labor Relations Board and the Illinois Educational Labor Relations Board use NLRB precedent in deciding public sector cases in Illinoois.